Bragdon v. Abbott/Concurrence Ginsburg

Human Immunodeficiency Virus (HIV) infection, as the description set out in the Court's opinion documents, ante, at 635–637, has been regarded as a disease limiting life itself. See Brief for American Medical Association as Amicus Curiae 20. The disease inevitably pervades life's choices: education, employment, family and financial undertakings. It affects the need for and, as this case shows, the ability to obtain health care because of the reaction of others to the impairment. No rational legislator, it seems to me apparent, would require nondiscrimination once symptoms become visible but permit discrimination when the disease, though present, is not yet visible. I am therefore satisfied that the statutory and regulatory definitions are well met. HIV infection is "a physical…impairment that substantially limits…major life activities," or is so perceived, 42 U.S.C. §§12102(2)(A), (C), including the afflicted individual's family relations, employment potential, and ability to care for herself, see 45 CFR §84.3(j)(2)(ii) (1997); 28 CFR §41.31(b)(2) (1997).

I further agree, in view of the "importance [of the issue] to health care workers," ante, at 654–655, that it is wise to remand, erring, if at all, on the side of caution. By taking this course, the Court ensures a fully informed determina- '''[p. 657]''' tion whether respondent Abbott's disease posed "a significant risk to the health or safety of [petitioner Bragdon] that [could not] be eliminated by a modification of policies, practices, or procedures...." 42 U.S.C. §12182(b)(3).